By Natan Last
Abolish ICE; revive the history that brought its demonic reign to power in the first place. Abolish borders, not boundary lines; interrogate not only the language that replaces them but the origins, linguistic and political, that installed them where they are to begin with. Harsha Walia, in her book Border and Rule, reminds us “the word ‘mob,’ a criminalizing vocabulary used to link large groups of poor, racialized people to social disorder, including in inner cities and at the border, derives from the word ‘mobility.’”[1] Likewise, scholar Kelly-Lytle Hernández, in her history of the U.S. Border Patrol, Migra!, recovers the physical etymologies of the southern border:
[In 1945,] … To confront the rise in illegal crossings across the California border, the Immigration and Naturalization Service delivered ‘4,500 lineal feet of chain link fencing (10 feet high, woven of No. 6 wire) to the International Boundary and Water Commission at Calexico, California.’ INS and Border Patrol officials believed that a fence would turn away unsanctioned border crossers and decided to recycle its resources by sending to the Mexican border the chain-link fence that had been used at the Crystal City, California, internment camp. The wires and posts that had imprisoned Japanese Americans during World War II were dug up from the deserts of Crystal City and driven into the sands of the U.S.-Mexico border to keep Mexicans out, at least for 5.8 miles on either side of the All-American canal in Calexico, California.[2] (emphasis added)
Just as Paulina Ochoa Espejo asks us to move from a question of who ought to be hurried under the protection of a democratic boundary to one of where those boundaries ought to be—from Hume’s desert island toy model to the wetter interdependence of watersheds[3]—questions of borders that fail to reckon with their historical construction risk both disembodied theorizing and misfires of political judgment. On the subject of migration, Ochoa Espejo, Joseph Carens, and Seyla Benhabib have given compelling defenses of theory in itself; Carens in particular warns against proclamation without prognostication, faulting Walia’s book Border and Rule for neglecting to paint the idealist’s vision of tomorrow’s borderless world.
But this is a bit backwards, or rather, not backwards enough—without more discussion of history, of not only the theory but the sociopolitical grammar of borders themselves, no utopian fever dream of free mobility is sensible, let alone actionable. That is, the etyma of today’s detention centers and refugee processing warehouses are the discourses of resource “recycling,” of grafting one violent racialized regime onto another, and of contorting nativist whiteness into postures of vulnerability to “invasive species.”[4] As immigration attorneys like to remind people, the P in CBP is not the Patrol of U.S. Border Patrol; it stands for Protection, a pretense of trembling inside against the encroaching out.
This matters, of course, because of the straight line we can draw from darker ages of ecofascism to reemergent syntheses of naturalism and nationalism today—and, without a historically-informed wresting away of the pencil, toward the climate apartheid regime many believe is soon to come.[5] From America’s inception, Thomas Jefferson liked to argue with the Comte de Buffon—by some accounts the first climate scientist[6]—about the relative hospitality of the American and French ecosystems; the argument was juvenile enough so as to descend into debates over the size of the American elk’s antlers, and all the tiresome associations of virility that implied.[7] By now familiar dehumanizations of Jews in World War II turned not just on tropes of pest, insect, and nuisance but also counterposed the urban Jew with the “the wholeness, purity, and plenitude of rural peasant life”—the “Blood and Soil” slogan predates the Third Reich as the rallying cry of German back-to-the-landers, though they were no less shy with their supremacism. Back in the States, Madison Grant, a Manhattan lawyer turned conservationist and the author of the white supremacist treatise The Passing of the Great Race, or The Racial Basis of European History, practiced a kind of masculinist scientific racism alongside the likes of Teddy Roosevelt and John Muir, the founder of the Sierra Club. These men sought to preserve—to Protect, with a capital P—what they figured as the thrumming soul of American wilderness. Unsurprisingly, the Sierra Club spent years as border hawks, advocating for population control and increased restrictions up until the 1990s. In more recent incarnations, Anders Breivik, the Norwegian extremist who murdered 69 Labor Party members in 2011, cited Madison Grant in his manifesto.
To be sure, none of this is to reject Ochoa Espejo’s call for place-based boundaries, only to guard against the naturalization of place-based community that to date has indeed been the site of right-wing co-optation. Ochoa Espejo, on the contrary, is clear about the move from environmental conditions to legal constraints: “Instead of identity and property, here presence and participation in systems involving geology and biota determine the relevant political bonds. In the Watershed Model, countries are connected and interdependent; their rights of border control do not derive from the internal legitimacy of jurisdiction but rather from the international system of states.”[8] Similarly, Benhabib, in public remarks, has been careful to acknowledge that borders are “artificial constructs that have no inherent value,” whereas boundaries “do have moral value because they enable democratic accountability.” On this view, there is nothing natural about the duties arising from boundary lines that contain the demos, even if the origins of those lines are, themselves, naturally given.
These questions of linguistic interpretation are crucial precisely because the law is both a series of lines of texts as well as a series of borderlines. Kieran Dolin, in A Critical Introduction to Law and Literature, reminds us of this:
In its basic operations, law attempts to create, police, and occasionally transgress social, spatial and temporal boundaries. The pre-eminent declaration of a legal system—its announcement of its own existence—establishes jurisdictional boundaries within which its authority prevails. This definition of a geographical space is matched by the declaration of temporal boundaries (statutes of limitation, ages of minority and majority, retroactive or prospective application of statutes or case law) within which legal authority is exercised. Within law’s spatio-temporal grid, complex systems of classification are established, creating boundaries that define individuals, communities, acts, and norms: Who is a criminal? A citizen? A victim of negligence? A person or group entitled to legal protection or remedy?[9] (emphasis mine)
Who is a refugee? An economic migrant? Seyla Benhabib has noted not only the manglings of the 1951 Refugee Convention—an article of hers explores the putative “End” of its use in light of all that abuse[10]—but also the way its original temporal provisions (only applying to the displaced of WWII) and odd swaths of protected groups (the five categories on which claims are based) render it at times unwieldy, at others ineffective. We should read Benhabib’s call for “porous” borders as a call to relax the impassibility of the Convention’s strictures themselves; Benhabib herself names “membership in a particular social group,” one of the five legal bases for asylum claims, the “grab bag” that it is. There is, again, nothing natural about the designations and boundaries created by refugee law. To continue to stretch this law may only be another misguided attempt to recycle unnatural boundaries—if ones less severe than the southern border wall’s origins. Those pointing to the inadequacy of the Convention in addressing, say, gender-based violence claims (also often grouped under membership in a particular social group) are much more critical still about twisting its provisions for the onset of climate-induced migration just on the horizon. In favor of porous boundary lines, then, abolish borders—both those created by the law and also those within it.
Dolin’s figuration of the law as boundary-keeper makes sense in light of his reading of Robert Frost’s 1914 poem “Mending Wall” alongside the Supreme Court decision in Plaut v. Spendthrift Farm Inc. In writing the majority opinion—the case turned on questions of separation of power and Congressional trespass, not securities law—Antonin Scalia described the “prophylactic” merits of “establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.”[11] Then, having introduced the metaphor of the wall, Scalia goes on to (mis)cite Frost: “separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: good fences make good neighbors.”[12] Stephen Breyer, though in concurrence with the majority decision, points out Scalia’s potentially flawed reading of the poem, and the misreadings of the law it might augur:
He cautioned against ‘the unnecessary building of such walls’ as ‘in itself dangerous, because the Constitution blends, as well as separates, powers in its efforts to create a government that will work for, as well as protect the liberties of, its citizens’ … He finds that past cases provide other metaphors than the wall: citing Springer v. Philippine Islands he argues that the doctrine does not ‘divide the branches into watertight compartment’, nor ‘establish and divide separate fields of black and white’. In refining the meaning of ‘separation of powers’, Breyer also takes issue with the majority’s use of Robert Frost’s poem to bolster their decision: ‘One might consider as well that poet’s caution, for he not only notes that ‘‘Something there is that doesn’t love a wall,’’ but also writes, ‘‘Before I built a wall I’d ask to know / What I was walling in or walling out.”’[13]
That is, Scalia is making the same mistake most of us do in (mis)remembering Frost’s poem. The poem begins “Something there is that doesn’t love a wall”; the speaker of the poem and his neighbor are, together, mending the stone wall that separates their two estates, and which some animal has lately taken a chunk out of. The wall is not, strictly speaking, necessary, at least the speaker doesn’t think so: “It comes to little more: / There where it is we do not need the wall: / He is all pine and I am apple orchard. / My apple trees will never get across / And eat the cones under his pines, I tell him.”[14] The neighbor has only that well-known retort, “Good fences make good neighbors.” The speaker is seized by an impish impulse to press the matter:
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
‘Why do they make good neighbors? Isn’t it
Where there are cows? But here there are no cows.
Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn’t love a wall,
That wants it down.’ I could say ‘Elves’ to him,
But it’s not elves exactly, and I’d rather
He said it for himself.
But the neighbor doesn’t relent, only continues to rebuild the wall “like an old-stone savage armed,” moving “in darkness as it seems to me.” Crucially, the adage “Good fences make good neighbors” acts like a kind of patrimonial precedent—“He will not go behind his father’s saying,” notes the speaker of his neighbor—in a way that cannot help but recall the masculine purity of Madison Grant’s wilderness and link it to a kind of paternalist originalism. More than that, the easy reproducibility of the neighbor’s anaphora should make us suspicious of phrases likelier to be good poetry than humanistic law, just as it should make us lament the tinniness of “Something there is that doesn’t love a wall” and the analogous unwieldiness of, say, the Refugee Convention’s categories.
On Ochoa Espejo’s account, we might change this “advice” to “Good neighbors make good fences.” Ochoa Espejo has even urged us to think of one another “not as co-nationals, but as neighbors,” bound to one another not by Scalia’s distinctive Americanness but by a shared duty of stewardship for the environment and for social life. Here, what Ochoa Espejo has called “good borders” are really, in an idealist sense, boundary lines of a demos at the locus of pre-existing relations, open to all and conferring of all the relevant rights just by the mere act of entrance.
How can good boundary lines become repeatable creatures of law? Dolin’s rereading of Scalia, Breyer, and Frost suggests good lines of poetry—properly understood—can help light the way to good law, just as much as misreadings of texts—passed off as textualism, no less—can act as a wrong turn. For one thing, Ochoa Espejo’s concept of watershed sovereignty as counterposed to the dry sands of Hume’s desert island[15] can serve as a reminder that water is a site of renewal as much as treacherous border crossing. Consider feminist philosopher Astrid Neimanis’s concept of amniotics[16], in which boundary lines exhibit the (literal) “porousness” argued for by Benhabib: “[t]he amnion … establishes the watery environment, the fluid gestational habitat, necessary for the proliferation of life. But it also establishes a separation between one body and its gestating other. This is not a definitive separation; the amnion is a membrane that facilitates and in fact demands the interpermeation and passage of life-proliferating matter and force.”[17] Because water is “both body and milieu,” at both the State and personal level, “discrete individualism,” to Neimanis, “is a rather dry, if convenient, myth.”[18] This description of sovereignty rhymes with historical excavations of the Westphalian mythos itself; as the conventional story has it,[19] the story of Westphalian sovereignty “marked man’s abandonment of the idea of a hierarchical structure of society and his option for a new system characterized by the coexistence of a multiplicity of states, each sovereign within its own territory, equal to one another, and free from any external earthly authority. … This new system rests on international law and the balance of power, a law operating between rather than above states and a power operating between rather than above states” (emphasis added).[20] Richard Joyce sees these sorts of myths as always both necessary and suppressed—necessary because they more easily serve to explain ourselves and our nations than a less fungible historical record, and suppressed because of the many ways the myth falls short of reality. That is, understanding sovereignty in all the indiscriminate solidness of Westphalia treats as equally inviolable the maneuvers of poor states and rich, countries of origin and common migration destinations. Just as with Frost’s too-easy mnemonic, the task at hand is to reconfigure the fiction of sovereignty; as Joyce points out, the beginning of wisdom might be recognizing just how fictional—more opportune than empirical—the original Westphalian story turns out to be.[21]
It is Neimanis’s concept of amniotics that brings us closer to a leftist understanding of state agency and away from a liberal understanding of state sovereignty. The former treats difference dialectically; as Neimanis writes: “Amniotics thus articulates three modes of watery embodiment, in a common logic: first, bodies of water as facilitative and gestational; second, bodies of water as differentiating, as well as the material accomplishment of this differentiation; and third, bodies of water as necessarily interconnecting and interpermeating, all at the same time” (emphasis added).[22] She continues, “Amniotics asserts an aqueous logic that is at once of, in, and between, while at the same time requiring a force of becoming. My wager is therefore that water, as simultaneously that which gestates beings, that which is gestated as difference, and that which interpermeates and connects beings, might teach us something about an expanded understanding of the ontological.”[23]
A liberal conception of sovereignty, on the other hand, adapts relativism and diversity for conquest. This is Neimanis’s dry myth of discrete individualism in which persons and States are on equal footing, justifying a host of misdeeds in the false name of equality. For one thing, this concept of wolfish sovereignty in equality’s clothing has its roots in the colonial encounter and in preservations of masculinized whiteness prevalent in the ecofascist tendencies cited above; as Tzvetan Todorov writes of the debates between Bartolomé de Las Casas and Juan Ginés de Sepúlveda on the legality and morality of 15th century Spanish conquest: “If it is incontestable that the prejudice of superiority is an obstacle in the road to knowledge, we must also admit that the prejudice of equality is a still greater one, for it consists in identifying the other purely and simply with one’s own ‘ego ideal’ (or with oneself).”[24] For another, conquest is naturalized in early international law through the very trope of migration: questions of jurisdiction, once secularized away from the universal jurisdiction of the Pope, are overcome with a seemingly innocuous, putatively universal “right to sojourn,” invoking the “beginning of the world” in which nothing so frivolous as laws of property prevented one from traipsing around the world.[25] Because the right to sojourn is available to all, Native Americans had no more right to expel the sojourning Spanish than would the Spanish if indigenous peoples made their way to Europe, never mind the power imbalances and drives that make this equation absurd.[26]
On that view, sovereignty itself must be remade not just because of today’s migratory urgency, but because that urgency owes its magnitude in part to sovereignty’s own etymology as a force naturalizing conquest and the free movement of the powerful. The original sojourners, then, were exactly the colonial mobs arguing for free mobility that now, as Harsha Walia notes, racialize and criminalize mass migration in these same terms. Border abolition requires not just porous boundary-making but poking further holes in the sovereign-making myths that underpin international law and the migration regime in its remit. Only then can good neighbors unmake the bad fences all around us, and build something better—or nothing at all—where they stood.
Notes
[1] Walia, Harsha. Border and Rule: Global Migration, Capitalism, and Racist Nationalism. Haymarket Books, 2021.
[2] Hernández, Kelly Lytle. Migra!: a History of the U.S. Border Patrol. Berkeley, CA: University of California Press, 2010.
[3] Ochoa Espejo, Paulina. On Borders: Territories, Legitimacy and the Rights of Place. Oxford University Press, 2020.
[4] The New Republic, “Why White Supremacists Are Hooked on Green Living,” https://newrepublic.com/article/154971/rise-ecofascism-history-white-nationalism-environmental-preservation-immigration (Last visited 2 May 2021)
[5] Ibid.
[6] See e.g., Mayr, Ernst. The Growth of Biological Thought. Cambridge: Harvard, 1981, p. 330.
[7] See e.g., https://founders.archives.gov/documents/Jefferson/01-12-02-0191 (Last visited 2 May 2021)
[8] Ochoa Espejo, supra note 3, p. 19.
[9] Dolin, Kieran. “Introduction to Law and Literature: Walking the Boundary with Robert Frost and the Supreme Court.” A Critical Introduction to Law and Literature, Cambridge University Press, 2007, p. 6.
[10] Benhabib, Seyla. “The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights,” Jus Cogens, 2020.
[11] Dolin, p. 1-2.
[12] Ibid., p. 2.
[13] Ibid., p. 3.
[14] Robert Frost, “Mending Wall,” https://www.poetryfoundation.org/poems/44266/mending-wall.
[15] Consider the hot, homogenizing image of the “melting pot”—often misunderstood as a salutary figure of immigrant community—that actually has its roots in thinly-veiled arguments for an ethnostate:
“The fusing process goes on as in a blast-furnace; one generation, a single year even—transforms the English, the German, the Irish emigrant into an American. Uniform institutions, ideas, language, the influence of the majority, bring us soon to a similar complexion; the individuality of the immigrant, almost even his traits of race and religion, fuse down in the democratic alembic like chips of brass thrown into the melting pot.” From Munson Coan, Titus. “A New Country,” The Galaxy Volume 0019, Issue 4 (April 1875), p. 463.
[16] Neimanis, Astrida. Bodies of Water: Posthuman Feminist Phenomenology, London; New York: Bloomsbury Academic, an imprint of Bloomsbury Publishing, 2017.
[17] Ibid.
[18] Ibid.
[19] See Joyce, Richard, “Westphalia: Event, Memory, Myth,” in Events: The Force of International Law, 2011.
[20] Ibid.
[21] Ibid.
[22] Neimanis, p. 97.
[23] Ibid.
[24] Todorov, Tzvetan. “Love” from The Conquest of America, University of Oklahoma Press, 1982.
[25] See Anghie, Antony. “Francisco de Vitoria and the Colonial Origins of International Law,” from Imperialism, Sovereignty, and the Making of International Law, Cambridge, 2004.
[26] Ibid.
